Conservative justices show sympathy for case that could undercut LGBTQ rights

Justice Brett Kavanaugh seemed eager to turn down the heat in the case, contending that it involved a “fairly narrow” dispute about how to treat commercial artists such as web designers and that neither a major setback for LGBTQ rights nor for free speech rights was in the offing. “I saw a lot of agreement, actually, between the parties,” he said. “The case comes down to a fairly narrow question of how do you characterize website designers.”

For her part, Waggoner repeatedly emphasized that respecting Smith’s free speech rights would also serve as a bulwark against LGBTQ individuals who provide services being forced to deliver messages they don’t agree with. “The First Amendment is broad enough to cover the lesbian website designer and the Catholic calligrapher,” she said.

But Justice Elena Kagan said the notion of speech in the same-sex wedding-related cases coming to the court was becoming more and more strained. “Next, we’ll have the stationer up here,” Kagan said, later suggesting that even the rental service that sets up chairs for a wedding could claim it is being seen by the public as giving its blessing to the nuptials.

“I won’t be coming back with the caterer,” Waggoner said.

Civil rights advocates warn that the latest challenge poses a danger not only to LGBTQ rights, but also to longstanding laws barring discrimination on the basis of race, gender and religious belief.

During the 1960s, the Supreme Court and other federal courts resoundingly rejected arguments that individuals and businesses could defy laws against race discrimination by asserting religion-based opposition.

Fears in the LGBTQ community about legal setbacks have increased since the Supreme Court issued its decision in June overturning the nearly half-century-old federal right to abortion.

Justice Clarence Thomas’ concurrence accompanying that ruling said he would favor revisiting the 2015 decision finding a federal constitutional right to same-sex marriage. However, many legal analysts predicted the conservative justices who now outnumber their liberal colleagues by six-to-three are more likely to cut back LGBTQ rights incrementally in the coming years than to overturn a widely-accepted decision on same-sex marriage rights.

But the current batch of Republican-appointed justices have hardly been hostile to gay rights. Just two years ago, Gorsuch, an appointee of President Donald Trump, and Chief Justice John Roberts, an appointee of President George W. Bush, joined with four Democratic-appointed justices to issue a landmark decision in favor of LGBTQ rights.

In a surprise to many courtwatchers, Gorsuch wrote the opinion, concluding that a literal reading of longstanding law against sex discrimination in the workplace prevented discrimination against gay, lesbian and transgender people, even though Congress failed for decades to pass legislation explicitly adding such protections.